The Gatekeepers of Choice: How Indian Courts Shape Reproductive Destiny

Introduction

In July, 2017 the Supreme of India in the case of Alakh Alok Srivastava vs Union of India slammed the door of justice by denying the termination of pregnancy to a 10year old rape survivor. This judgement did not just jolt the entire nation but also made every individual appraise the abortion laws in India. This verdict forced a child to endure the trauma of childbirth, given on the ground that the pregnancy is far along for termination and raises a potential risk of the life of the minor but is giving birth by a caesarean section which requires cutting trough seven layers of fresh, multiple stitches and causes immense amount of blood loss safe for a child who isn’t mature enough to understand what her body is undergoing through the pregnancy period and post delivering the child and the intricacies of reproduction.

India, the largest democracy in the world often displays by such judgments that a woman’s body is merely a subject of legal battlefield rather that a vessel of autonomy. The nation has observed some progressive amendments in the recent times but the judicial decrees given in cases like this do not align with the liberal and developing mindset the country portrays on the international stage.

This article argues that the current legal framework and laws under the Bharatiya Nyaya Sanhita and Medical termination of Pregnancy Act is restrictive and violates the rights of freedom of choice. The article proceeds as follows: Section II describes the current legal-framework, Section III impact of such laws on women, Section IV gives a comparative analysis with other countries around the world and Section V examine possible reforms which can be made by the government.

Existing legal framework of India

Under the Medical Termination of Pregnancy Act

The Medical Termination of Pregnancy Act was enacted in the year 1971, which was later amended in the year 2021. This act lays down the rules, regulations and possess certain restriction on the abortion rights. The amendment of 2021 extended the legal window for abortion but simultaneously implemented a permission-based framework rather than the rights-based framework.

The current rules and regulations under the MTP act are as follows:

0-20 weeks: abortion of the fetus grown up to the period of 20 weeks can be done only by the permission of a registered medical practitioner.

20-24 weeks: the abortion of fetus at this stage is strictly limited to the special categories defined by the law or the court. These include survivors of sexual assault, minors, women with disability, etc. In this period of pregnancy, the abortion can be permitted by the approval of two registered medical practitioners.

Beyond 24 weeks: the court does not permit any petition for abortion expect for cases where a substantial fetal abnormalities or immediate danger to the mother’s life lies.

Under the Bharatiya Nyaya Sanhita:

The section 88 of the BNS states that any person who causes miscarriage of a child voluntarily without good faith is liable for imprisonment. This section specifies that if the act was not done in good faith to safeguard the mother from the potential risk of loss of life the person who causes miscarriage commits a criminal offence. The consent of the mother cannot be used as a safeguard against this section.

The laws in India relation to abortion are not subject to the choice of the women but are subject to the discretion and permission of the court. A nation which claims freedom and equality as the bedrock of its constitution and guarantees the right to life and personal liberty under Article 21, strips away the bodily integrity of a pregnant individual. In a country where 1.4 billion people of numerous religious and cultures live with integrity and freedom, a woman is deprived of the right to decide what happens to her body and decide whether she wants to be a mother or not.

In the case of [1]X V. Principal Secretary, Health and Family Department, 2022, the court granted the permission to terminate pregnancy to an unmarried woman carrying pregnancy of 22 weeks because of change in her relationship status.

Whereas, in the case of [2]X V. Union of India, 2023, the court denied a mother of two suffering from post-partum depression due to fatal viability discovered by the medical board. This judgment shows that a mother’s mental health can be negated by fetal viability.

III The Human Toll: impact of these laws on women

Severe Psychological Trauma:

The forced pregnancy acts as a physical extension of the sexual harassment the survivor has to deal with every day of their life. The victim has to face the trauma of explaining their pain to the medical board in order to receive permission for termination of pregnancy. In cases where the victim is denied permission of abortion the victim often undergoes post-traumatic stress disorder, anxiety and severe depression.

In other case where the woman wishes to abort the child merely out of choice of not becoming a mother the woman deal with post-partum depression in most of the cases.

The peril of clandestine abortions:

The restrictions do not stop abortions in the country they simply put a restriction on safe abortions. When women are denied abortion, they often opt for termination of pregnancy through back-alley clinics and unqualified practitioners which leads to a potential risk of danger to life of the individual.

Abandoning of new born child:

The refusal of termination of pregnancy through legal means also leads to the abandoning of child by the mother in cases of unwanted pregnancies before marriage due to the fear of the society and the family. There have been several cases reported in the recent times where new born babies were abandoned in public places and left to die.

IV Comparative Analysis

Canada:

Canada represents the zenith of reproductive freedom. In the case of [3]R V Morgentaler, the Supreme Court of Canada decriminalized abortion. The criminal laws do not govern the provisions for abortion or restrict it by enforcing gestational ceilings.

Abortion is regulated as a standard medical procedure under the healthcare system. It does not require any approval from a registered medical practitioner neither there are any legal windows nor any judicial intervention from the government. The government respects the free will of the individual and ensures that there is no coercion in the decision making.

Since abortion is treated solely as a medical treatment or a standard healthcare provision this eliminates the institutional fear that plagues the doctors in India. In contrast to India where a woman carrying a pregnancy over 24 weeks is forced to deal with the gruel judicial delays to secure permission there is no such restrictions on a Canadian citizen. The Canadian system highlights the facts that the Indian framework of law still views abortion from the lens of conditional criminality instead of an unalienable right.

France:

In March 2024 France became the first country to explicitly enshrine freedom of abortion to its constitution under Article 34. This historic amendment served as a protective response against the regression reproductive rights have been facing globally. Abortion of pregnancy up to 14 weeks is available on demand and all the expenses are completely covered by the national healthcare. Any pregnancy beyond the period of 14 weeks can be terminated with the permission of two registered medical practitioners who certify that the pregnancy posses a potential risk to the woman’s health or the fetus has an incurable illness.

The fundamental difference between the legal framework of India and France lies in the source of authority. Abortion in France hold the status of a constitutional and fundamental right which protects the personal liberty of the pregnant individual.

In India the judiciary often speaks of reproductive autonomy under the broad umbrella of Article 21 but the provisions of the Medical Termination of Pregnancy Act are contradictory to this right. The rights of a woman are left at the mercy of the dynamic interpretation of the law while the French Government considers the sovereignty of woman’s decision as a significant pillar of the state.

United States of America:

In USA abortion is not explicitly a federal constitutional protection but the states may individually dictate the regulations for abortion. Thirteen states do not permit abortion with no exceptions even in cases of rape or incest. Nine states and Washington D.C maintain no gestational limits on abortion at any state and protect it as a fundamental right.

When India compares itself with USA in terms of progressive things and reform making it only compares itself with the states which are more conservative than itself which is highly unfair to the people who actually believe the narratives set out by the government.

V Possible Reforms

Decriminalization:

The decriminalization of abortion is the most fundamental reform required to grant freedom of choice to the pregnant individual. The recognition of abortion as a criminal offence leads to unauthorised abortion by unlicensed doctors and abandoning of the new born child. It must be treated as a standard healthcare practice as it is done in Canada. It would reduce the institutional fear amongst the doctors.

Replacing the medical boards with patient autonomy:

The amendments made in 2021 introduced the medical boards in the process of termination of pregnancies over 20 weeks. The permission of medical boards in the cases of rape must be abolished and the decision must solely be made by the pregnant individual and their healthcare provider.

Recognition of “Abortion on Request”:

According to the current provisions of the Indian legal framework the woman must provide a reason based on which the judiciary gives a decree on its discretion. This must be changed to “Abortion on request” up to the period of 20 weeks without the bias whether the woman is married or unmarried. This would help in reducing the cases of unwanted pregnancies and reduces the number of cases where the child is abandoned by the mother at birth and also reduce the risk of threat of life caused when the abortion is done by unlicensed practitioners and back-alley clinics.

Conclusion

The evolution of the statues governing abortion in India remains caught in a deep structural paradox. The state celebrates the legislative amendments as progressive initiatives but the recognition of unauthorized abortions as criminal offence against the state contradicts to such amendments. The denial of termination of pregnancy in various cases serves as a reminder that the statutory clocks and the bureaucratic medical boards are prioritized over an individual’s right to free will and personal liberty.

Indian women face restriction made by the judiciary and the legislature who are the gatekeepers of free will and choice. In comparison to other countries where abortion is treated as a standard healthcare practice Indian women are forced to carry unwanted pregnancies because of the fear of punishment. The constitutional integrity of Article 14 and Article 21 are not upheld by the government by putting such restrictions.

The legal framework governing reproductive autonomy must be evolved beyond the exceptions to uphold the dignity of its citizens. The right to control one’s reproductive destiny must not be recognised as a conditional concession granted by the medical practitioners but as an unalienable and inherent component to live with dignity.

Bibliography:

CASES:

Alakh Alok Srivastava v. Union of India, (2018) 17 SCC 291.

X v. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi, (2022) SCC OnLine SC 1321.

X v. Union of India, (2023) SCC OnLine SC 1338.

v. Morgentaler, [1988] 1 S.C.R. 30 (Can.).

Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).

Legislation:

Indian statutes

The Bharatiya Nyaya Sanhita, 2023:

The Medical Termination of Pregnancy Act, 1971

The Medical Termination of Pregnancy (Amendment) Act, 2021

Foreign & Constitutional Statutes

France (Constitutional Amendment): Fr. Const. art. XXXIV (amended 2024).

United States State Statutes

Constitution of Canada

[1] X vs The Principal Secretary Health And … on 29 September, 2022, https://indiankanoon.org/doc/123985596/ (last visited May 17, 2026).

[2] X vs Union Of India on 16 October, 2023, https://indiankanoon.org/doc/125724114/ (last visited May 17, 2026).

[3] R. v. Morgentaler – SCC Cases, https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/288/index.do (last visited May 17, 2026).